By Thomas Morris

Drafters are often given a draft bill that purports to be a compact — sometimes called an interstate compact. However, in at least some instances, it is not a compact — it is a model law that the proponents wish to invest with the gravitas of a compact. They are very different things that need to be treated very differently.

Compacts

The states’ ability to bind themselves to a compact is governed by Article I, Section 10 of the United States Constitution:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. (emphasis added)

A good example of a compact is the Colorado River Compact, which is codified in article 61 of title 37, C.R.S. This compact was entered into by the states of Arizona, California, Colorado, New Mexico, Nevada, Utah, and Wyoming and was approved by Congress. It apportions the water of the Colorado River among the seven states. The statute codifying the compact quotes the compact in its entirety, including the provision indicating that it becomes effective only after at least six of the compacting states’ legislatures approve it and the listing of the signatures of the compacting states’ authorized representatives.

A fully executed compact is, simultaneously, three things (usually):

1. A contract between at least two states, typically negotiated by designees of the governors or other official representatives of the compacting states (not a private organization). If a compact is violated, the compacting states’ exclusive litigation remedy is to sue each other directly in the United States Supreme Court. Individuals have no standing to enforce a compact unless the compact explicitly or impliedly provides a private right of action.
2. A state law enacted by the contracting states’ legislatures. Because a compact is a contract, and a contract cannot be unilaterally modified by any of the contracting parties, if the bill is actually a compact, it needs to be enacted without any unauthorized changes. Look at, e.g., most of the parts in article 60 of title 24, C.R.S., where most compacts (other than with regard to water) are codified. Typically there is a C.R.S. section that states a short title (“‘This part 16 is known as the Interstate Corrections Compact'”) and another C.R.S. section that reproduces the compact as is—warts and all. There should be either a direction to the governor or a designee to enter into the compact or a portion of the compact that includes the signatures of, or other acknowledgement of execution by, the compacting states. However, sometimes a compact will specify that it becomes effective if it is enacted in “substantially” identical form by the compacting states’ legislatures. This allows the General Assembly to amend the compact, but it is unclear when the “substantially identical” standard would be violated.
3. A federal law. A compact that increases the power of states at the expense of the federal government cannot take effect under the federal constitution unless Congress approves it. This element is not required if the compact does not increase the states’ power by encroaching on federal authority, as determined by the United States Supreme Court in the case of Virginia v. Tennessee, 148 U.S. 503.

A prominent example of a compact between states that Congress did not approve is the 1861 Constitution of the Confederate States of America. With this example, one can see why the Founders were concerned about the states entering into at least some types of agreements among themselves.

Model Laws and Uniform Laws

In contrast, at least some of the documents given to drafters that purport to be compacts are really just model laws. There has been no contract between the states nor any plan to enter into one. The proponents are organizations or individuals that would benefit from having similar laws in various states, not the states themselves. The laws are enforceable by parties other than the enacting states. The laws are enacted only in more or less similar form. And there has been no approval by Congress nor any plan to get it.

Compacts are distinct from both uniform acts, which have been proposed by the Uniform Law Commission and approved by the American Bar Association, and model laws, which are produced by non-governmental bodies of legal experts. While some of the legal results are the same – state law is identical or virtually so in more than one state – the subject matter of the two types of laws (model and uniform laws versus compacts) fundamentally differs and the process of formulating and enacting the two types of laws is usually also quite distinct.

So it is incumbent on the drafter to figure out, precisely, what he or she has been given before the bill can be finalized. If it’s truly intended to be a compact, even if the other two elements – contract and congressional approval – are not yet in place, it should generally be codified as a new part in article 60 of title 24. And unless it specifies that it can be amended, so long as it is enacted in substantially the same form by all the compacting states, the document should not be altered in any way, including by amendment. If this is the case, the drafter and contact people should make that very clear to the bill sponsor and any other legislator who may try to amend it.

If the document is really just a model law, it should not be codified as a part in article 60 of title 24, and the bill sponsor or any other legislator may make any changes they choose. But please don’t call it a compact!